This is an application in terms of subsections 85(1)(a) and 85(1)(b) of the Constitution of Zimbabwe Amendment (No.20/2013) (“the Constitution”). The first applicant is acting in both her own interest and that of her husband who is the second applicant.In their heads of argument, the applicants submit that they have ...
This is an application in terms of subsections 85(1)(a) and 85(1)(b) of the Constitution of Zimbabwe Amendment (No.20/2013) (“the Constitution”). The first applicant is acting in both her own interest and that of her husband who is the second applicant.
In their heads of argument, the applicants submit that they have abandoned paragraphs 2, 3 and 4 of the relief originally sought in their draft order. They indicate that the application is now 'fundamentally focused' on an infringement of the first applicant's constitutional right to freedom of movement, which is protected under section 66 of the Constitution.
The applicants accordingly seek the following relief:
1. A declaratur to the effect that the first applicant's fundamental right to freedom of movement and residence, guaranteed under the Constitution, has been violated by virtue of the respondents refusal to grant the second applicant entry into and residence in Zimbabwe; and
2. An order compelling the respondents to:
(i) Permit the second applicant entry into Zimbabwe; and
(ii) Grant the second applicant a 'spousal' residence permit.
The background to the matter is as follows:
The first applicant is a Zimbabwean citizen by birth whereas the second applicant holds the citizenship of the United States of America. The latter, sometime in August 2011, entered into Zimbabwe without any impediments. He was issued with a temporary employment permit for the period of 28 September 2012 to 27 July 2013. The application was made on his behalf by a religious group called Cornerstone Fellowship International. During the second applicant's stay in Zimbabwe, he met and fell in love with the first applicant. After the expiry of his employment permit, the second applicant returned to his home country for a short period. He then returned to Zimbabwe on a holiday visa to spend time with the first applicant.
During this period, the two applicants solemnized their marriage in terms of the Marriage Act [Chapter 5:11] and made a decision to settle, and start their own family, in Zimbabwe.
This decision prompted the second applicant to take the necessary legal steps to attain the status of a lawful resident of Zimbabwe. He applied for a residence permit on the basis of his marriage to a Zimbabwean citizen. He was granted a thirty day extension on his holiday visa whilst his application for a residence permit was being considered.
On or about 2 June 2014, the second applicant was invited for a meeting with immigration officers under the control of the respondents. He was told to leave the country as he was deemed to be a “prohibited” person in terms of section 14(1)(e)(i) of the Immigration Act [Chapter 4:02] (“the Act”). He was then given two options, that is, to leave the country immediately or to be deported. This was pursuant to section 17 of the Immigration Act.
The second applicant chose the former option, and, on 2 June 2014, left for South Africa together with his wife.
Before leaving Zimbabwe, the applicants instructed their legal practitioners to appeal against the Prohibition Notice, which appeal was duly noted in the Magistrates Court, in terms of section 8 of the Immigration Act.
The Court, on 20 June 2014, ruled in favour of the second applicant and set aside the Prohibition Notice in question. The applicants were informed by their legal practitioners of this development, and, on 30 June 2014, left South Africa for Zimbabwe, believing that they would finally settle down in Zimbabwe.
Their joy was however short lived as the second applicant was denied entrance into Zimbabwe at the Beitbridge Border Post by the first respondent's officers, on the basis that he was still a prohibited person - despite the setting aside of the Prohibition Order.
The first applicant proceeded with the journey without her husband who was left in the hands of the first respondent's officers. She proceeded, on 18 July 2014, to file an application before this Court, challenging the respondent's decision to declare the second applicant a prohibited person, and denying him entry into this country.
Before the matter was heard, on 18 February 2015, the first applicant successfully applied for interim relief, in chambers before the Chief Justice, allowing the second applicant entry into the country pending the determination of this application.
I consider it pertinent, at this juncture, to address the parties submissions regarding the effect of the order of the Magistrates Court setting aside the first Prohibition Notice issued against the second applicant.
As already stated, the second applicant chose the option to leave the country, and did so, on the basis of the Prohibition Notice dated 2 June 2014.
A look at this Notice, which cites two provisions falling under section 14 of the Immigration Act, shows that the first respondent's officers were required to delete whichever of the two provisions did not apply in any particular case.
This was not done.
While clearly the second provision cited would not have been applicable to the circumstances of the second applicant, the first provision is not fully legible and seems to refer to a paragraph (i.e. paragraph (1) of subsection (1) of section 4 of the Immigration Act) that simply does not exist as part of the various paragraphs and subsections of section 14 of the Immigration Act.
The applicants challenged the Notice primarily on this point, stating as follows in their grounds of appeal in the lower court:
“The order of prohibition is invalid at law as it is not supported by the cited provisions of the Immigration Act (Chapter 4:02).”
The applicants accordingly sought an order setting aside the Prohibition Notice.
This ground of appeal had merit in view of section 8(4)(a) of the Immigration Act which reads as follows:
“When —
(a) Leave to enter Zimbabwe is refused or any person is informed, for the first time, that he is a prohibited person in terms of this Act, notice in writing specifying the provision of this Act under which leave to enter Zimbabwe is refused or the person is a prohibited person, as the case may be, shall be given to the person concerned:
Provided that…,.”…,.
The Magistrate's full reasons for the order he made, setting aside the impugned Notice, were not part of the record before this Court. Only the actual order of the Court has been provided, and it simply reads:
“The immigration appeal is upheld and the prohibition be and is hereby set aside.”
Despite the lack of reasons for this order, its correctness cannot be doubted. This is because the Notice in question, as already mentioned, did not correctly cite the section of the Immigration Act by virtue of which the second applicant was a prohibited person. The Notice, therefore, did not comply with section 8(4)(a) of the Immigration Act.
As indicated above, the applicants understood the order setting aside the Prohibition Notice to mean that there were no longer any legal impediments to the second applicant's return to Zimbabwe.
The respondents took a different view of the matter.
They contend, that, the Magistrate's Court's decision was based on a technicality rather than on the merits. This, in their view, meant that the lower Court did not make a determination to the effect that the second applicant was not a prohibited person, nor that such status be set aside.
The respondents attached to their opposing papers another Prohibition Notice dated the same day, 30 June 2014, declaring that the second applicant was a prohibited person in terms of section 14(1)(e)(i) of the Immigration Act.
This notice fully complied with section 8(4)(a) of the Immigration Act.
I find the respondents submissions, on the import of the Magistrates Court's order setting aside the Prohibition Order, to have merit.
The applicants challenged the Prohibition Notice, of 2 June 2014, largely on technical grounds. There can be no disputing the fact that the Notice in question was fatally defective, that is, a nullity. However, it appears that the applicants laboured under the misconception, that, the setting aside of the Prohibition Notice had the effect of opening the way to the second applicant to re-enter Zimbabwe.
Section 8(4(a) of the Immigration Act makes it clear, that, the Notice does not confer the status of prohibited person on the recipient. All that it does is formerly inform the person of the section of the Immigration Act under which he was a prohibited person, that is, a person not eligible to enter Zimbabwe.
This is to be contrasted with the situation referred to in section 14(2) of the Immigration Act which reads as follows;
“A person shall be declared to be a prohibited person in terms of subparagraph (iii) of paragraph (e) of subsection (1) by notice in writing served on him, or, if his whereabouts are unknown or he has departed from Zimbabwe, by notice in the Gazette.”
The second applicant's prohibited person status derived from the law, that is, section 14(1)(e)(i) of the Immigration Act, which I have cited below (sic).
The respondents are therefore correct in the assertion, that, the second applicant maintained the status of prohibited person despite the setting aside of the Prohibition Notice. That being the case, the respondents were properly within their rights to issue another Notice clearly setting out the basis for such a status.
The applicants, albeit challenging it in casu, did not appeal to the Magistrates Court (this would be in terms of section 21(1) of the Immigration Act) against the allegation in the second Notice, that he was a prohibited person.